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Stewart Mini-Symposium: A Response to Samuel Moyn

by James G. Stewart

[James G. Stewart is an Assistant Professor at the Faculty of Law at Allard Hall, University of British Columbia. His new article, The Turn to Corporate Criminal Liability for International Crimes: Transcending the Alien Tort Statute, can be found here.]

We occupy a curious point in history. Despite an understanding that corporations enabled slavery, were at the vanguard of colonialism, either fuelled or instigated the Second World War, and now provide key inputs to modern atrocities of all stripes, there is very nearly zero accountability for corporate violations of basic human rights norms. What a pleasure, then, to have Samuel Moyn critically reflect on this sorry state of affairs we have inherited and whether corporate criminal liability for international crimes will mark an important departure from everything that came before or merely a new mechanism for distracting our gaze from the obvious structural misalignments that inhibit human dignity most acutely.

I find Moyn’s assertion that our ancestors were more ambitious that us an attractive one. In the same breadth, I often muse with students how significant it is that we live during the initial years of a permanent international criminal court, itself an unspeakably ambitious project. In 1872, Gustave Moynier, the Swiss jurist and founder of the International Committee of the Red Cross proposed an international institution of precisely this sort, which was later revisited in the Paris Peace Conference of 1919 and then the Genocide Convention of 1948. So, with respect to our ambitions for international criminal justice, we fare fairly well in a comparison with our ancestors. Moreover, for better or worse, we have definitely outstripped them in terms of execution.

Importantly, the rise of the international criminal justice we have brought about isn’t limited to international institutions; instead, it has seeped into national courts in a remarkable process of transnational acculturation. Quite suddenly, state legislatures found themselves implementing international crimes into their domestic criminal codes, national law enforcement agencies are creating specialist war crimes units with increasing frequency, and cases involving international crimes are arguably as numerous locally as they are internationally. This past summer, I even sat through the Blackwater trial in Washington D.C. (see initial commentary here), partly out of a sense that even the United States was slowly surrendering to the trend.

The question for present purposes is, will the march of international criminal justice halt at the doors of businesses or extend to and engulf the commercial sides of atrocity, too? Will WWII cases against “industrialists” (an archaic term that I think distances these historical precedents from contemporary realities) remain quaint relics of experimentalism in the immediate post war, or will they have some salience to the plain legal parallels with modern warfare, especially in Africa? Whatever the future holds in these respects, there’s no doubt that the past has much to still teach us.

On that score, Moyn’s recitation of the traditional history of corporations in Nazi Germany is disputable. In an outstanding new thesis, Grietje Baars argues that the standard narrative of “industrialists” as auxiliaries to Hitler’s expansionism gets the relationships backwards. “Industrialists,” according to Baars, either enjoyed ascendancy over Hitler or existed in a far more horizontal relationship with leaders of the Nazi Party than historians have let on. As the Nuremberg Judgment itself recounts, “In November 1932 a petition, signed by leading industrialists and financiers, had been presented to President Hindenburg, calling upon him to entrust the Chancellorship to Hitler.” (Nuremberg Judgment, p. 177). If accurate, this history helps highlight the limitations of focusing on complicity alone within the business and human rights discourse, and brings home the importance of thinking very seriously about our topic.

In his kind response to my article, Moyn rightly recognizes that I see ICL as supplementary to other regulatory strategies, including the Alien Tort Statute (ATS). He writes that “I agree with Stewart that it would be dubious, not to mention counterfactual, to suppose that a focus on atrocity (whether through criminal law or civil liability) somehow rules out bigger regulatory ambition.” Nonetheless, he sees two provisos, which I address now in turn.

(more…)

http://opiniojuris.org/2014/11/24/stewart-mini-symposium-response-samuel-moyn/
This entry was posted in Academic Symposia, Featured Posts.

Stewart Mini-Symposium: The Ambitious Past of Corporate Regulation

by Samuel Moyn

[Samuel Moyn is professor of law and history at Harvard University. He is on Twitter at @peiresc.]

During the absorbing litigation that led to the death of Alien Tort Statute litigation a couple of years ago, one of the most fascinating moments occurred late, and it has not been mentioned since.

In the Second Circuit phase of Kiobel v. Royal Dutch Petroleum, Judge José Cabranes had contended that the International Military Tribunal at Nuremberg proved there was no norm in customary international law of corporate civil liability. If so, he had asked, how could he find for the plaintiffs? In response, a bevy of renowned historians filed an amicus brief on appeal to the United States Supreme Court, contending that the reason Judge Cabranes had failed to find civil liability was because the Allies had been willing to destroy the corporations that participated in Nazi evil. The greater included the lesser: if they could go that far, would they really have rejected civil liability for corporate atrocities? Then another group of historians, including Jonathan Bush, filed an amicus brief not so ardently focused on serving the human rights movement (though not opposing it either). No longer indentured to the instrumental if understandable project of reading the past for present ends, these historians revealed that our ancestors were more ambitious than we are.

In their treatment of corporations, Bush and his colleagues said, the Allies hadn’t really been interested in atrocities anyway, or merely aimed at the low bar of sanctioning them. Rather, Nuremberg lawyers had been New Dealers; they had thought a lot about corporations, especially in the antitrust context; and it was this thinking that motivated them to break up (not destroy) I.G. Farben and take the other steps they did. More generally, an attitude of politically organizing business properly to avoid aggressive war mostly prevailed, not atrocity consciousness for the sake of victims seeking compensation. It was one of those things that seemed self-evident as soon as the historians said it, even if the insight got lost in the shuffle of the litigation, with its necessarily opportunistic attitude toward the past. Yet the prospect that opened in the midst of the litigation wasn’t merely self-evident, it was exciting. In the old days, corporations were regulated in the name of a theory of the healthy role they could and must play in a democracy. They were not simply unbound — as they have been since the conservative legal movement set the terms of corporate law nationally and internationally — and then at most taxed after the fact when they went awry.

Granted, the corpse of ATS may twitch for a long time and – who knows? – may one day find itself resurrected under different political circumstances. It is to his great credit, however, that James G. Stewart has turned away from searching frantically for signs of life in the fallen statute, in order to explore other fruitful approaches. Anyway, how much good did the ATS do, even before it was cut down? (Full disclosure: I have been flamed on this blog simply for raising this question, as if the burden weren’t on advocates of the ATS strategy to prove how much difference it has made, and to consider it in relation to other possible political and legal strategies.)

I won’t comment much on Stewart’s alternative, corporate criminal liability, in part because his other respondents know a lot more about the details. His reading of the tea leaves of the Argor-Heraeus case seems speculative but impressive, and his assessment of the doctrinal possibilities of criminal liability relative to the ATS strategy is interesting. As Stewart points out, a civil liability strategy merely taxing corporations (especially when the tax is simply passed on to their consumers) looks insufficient if it doesn’t provide the social condemnation law secures through criminal opprobrium. Stewart might even be right that if we have to choose, the criminal strategy is normatively superior. Of course, in an ideal world, it would be better to have both, since a now potentially lost civil liability in theory should exist: victims may need and deserve the monetary compensation too. (more…)

http://opiniojuris.org/2014/11/24/stewart-mini-symposium-ambitious-past-corporate-regulation/
This entry was posted in Academic Symposia, Featured Posts.

Weekly News Wrap: Monday, November 24, 2014

by Jessica Dorsey

Your weekly selection of international law and international relations headlines from around the world:

Africa

Middle East and Northern Africa

Asia

Europe

  • Britain is facing the biggest terrorism threat in its history and has foiled around 40 major plots since suicide bombers attacked London in 2005, Home Secretary Theresa May said on Monday.
  • Lower oil prices and Western financial sanctions imposed over the Ukraine crisis will cost Russia around $130-140 billion a year – equivalent to around 7 percent of its economy – Finance Minister Anton Siluanov said on Monday.
  • The United States will keep troops in Poland and the Baltic states for at least the next year as tensions with Russia remain, the commander of U.S. land forces in Europe said on Sunday.
  • A week-long operation to clear the wreckage from the crash site of Malaysia Airlines flight MH17 in Ukraine has been completed, according to the Dutch government.
  • The number of Germans fighting alongside Islamic State militants in Syria and Iraq has increased sharply to 550 and around 180 have returned, the head of Germany’s domestic intelligence said in a newspaper interview published on Sunday.

Americas

UN/World

http://opiniojuris.org/2014/11/24/weekly-news-wrap-monday-november-24-2014/
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Mini-Symposium: James Stewart’s The Turn to Corporate Criminal Liability for International Crimes–Transcending the Alien Tort Statute

by Jessica Dorsey

This week we will host a mini-symposium on James G. Stewart’s latest article, The Turn to Corporate Criminal Liability for International Crimes: Transcending the Alien Tort Statute. James has been an Assistant Professor at the Faculty of Law at Allard Hall, University of British Columbia, where he as been since 2009. Previously he was an Associate-in-Law at Columbia Law School in New York. He has also been an Appeals Counsel with the Office of the Prosecutor of the International Criminal Tribunal for the former Yugoslavia and has also worked for the Legal Division of the International Committee of the Red Cross and the Office of the Prosecutor of the International Criminal Tribunal for Rwanda. James primarily works on the relationship between atrocity, commerce, and international criminal justice and has published extensively on these subjects.

Between today and Wednesday, Samuel Moyn (Harvard University), Steven Ratner (University of Michigan) and Beth Stephens (Rutgers) will comment on the article article and the author will respond.

It is our pleasure to welcome these scholars to Opinio Juris this week and we look forward to thoughtful comments and questions from our readership as well.

http://opiniojuris.org/2014/11/24/mini-symposium-james-stewarts-turn-corporate-criminal-liability-international-crimes-transcending-alien-tort-statute/
This entry was posted in Academic Symposia, Featured Posts.

Weekend Roundup: November 16-22, 2014

by Jessica Dorsey

Over the past week on Opinio Juris, we again enjoyed a lot of different perspectives from our guest bloggers, beginning with Rob Howse, whom Kristen introduced as this week’s featured guest blogger. He highlighted the return of neo-conservativism in Washington, reminded us of Alexandre Kojève’s being a neglected figure in the history of international law and also discussed the breakthrough at recent WTO talks and the trade facilitation agreement this week. He also posted on Liam Murphy’s book What Makes International Law Law?

Additionally, we heard from S. I. Strong announcing that the preliminary results from a recent empirical study on international commercial mediation and conciliation are now available.

Nicolás Carrillo-Santarelli talked about the most recent events in Colombia with the negotiations between the government and FARC rebels being suspended due to the and the kidnapping under IHL, including discussion around the illegality of deprivations of liberty, which sparked quite an intellectual debate in the comments.

A post also came in from Andrea Pin on the Italian Constitutional Court, the International Court of Justice and German war crimes. Duncan French and Jean d’Aspremont co-blogged on the ILC project on the identification of customary international law in summary of the two-day expert level seminar hosted by Lincoln Law School and the Manchester International Law Center.

Roger wrote up his analysis on the Ninth Circuit’s muddled comity analysis in Mujica v. Airscan while Kevin worked out some of his thoughts on the baffling Comoros decision and introduced a new videogame challenging the player to survive as long as possible as a civilian in a war-torn fictional city. Additionally, he introduced and congratulated the newly minted Dr. Mark Kersten.

Finally, I wrapped up the news and listed events and announcements.

Many thanks to our guest contributors and have a nice weekend!

http://opiniojuris.org/2014/11/22/weekend-roundup-november-16-22-2014/
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Weekly News Wrap: Monday, November 17, 2014

by Jessica Dorsey

Your weekly selection of international law and international relations headlines from around the world:

Africa

Middle East and Northern Africa

Asia

  • Thousands of Rohingya boat people who have left Myanmar in the past month have yet to reach their destinations, say relatives and an advocacy group for the persecuted minority, raising fears their boats have been prevented from reaching shore.
  • Three Hong Kong student leaders were stopped from boarding a flight to Beijing on Saturday to take their fight for greater democracy directly to the Chinese government after airline authorities said their travel permits were invalid.
  • North Korean leader Kim Jong Un is to send a personal envoy to Russia, state media said on Friday, the latest in a series of diplomatic moves by the isolated country as it fends off accusations of crimes against humanity.

Europe

Americas

Oceania

  • Australian city Brisbane played host to the G20 meeting, where leaders have pledged to stimulate job growth, bolster global financial institutions and address climate change in the communique released at the end of a two-day summit in Brisbane.

UN/World

  • Fighters from the Islamic State of Iraq and the Levant (ISIL) are committing war crimes and crimes against humanity on a large scale in areas under the group’s control in Syria, UN investigators say. In its first report focused squarely on acts by ISIL, the UN Commission of Inquiry on Syria presented on Friday a horrifying picture of what life was like in areas controlled by the group, including massacres, beheadings, torture, sexual enslavement and forced pregnancy.
http://opiniojuris.org/2014/11/17/weekly-news-wrap-monday-november-17-2014/
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Weekend Roundup: November 8-15, 2014

by Jessica Dorsey

This week on Opinio Juris, we had three guest contributions in addition to some of our regular bloggers weighing in on timely issues in international law. The first guest post, from Michael Kearney, discussed his thoughts on the ICC’s recent decision regarding the Mavi Marmara report, in which he focused on issues about fact-finding missions, categorization of armed conflict, limitations on territorial jurisdiction, and humanitarian assistance.

Jean d’Aspremont weighed in on an event that was organized by Manchester International Law Center and the Lincoln Law School, and shared his thoughts about the identification of customary international law and the ILC report. Another post is expected from Jean later this week or beginning of next.

Additionally, Gabor Rona contributed to a discussion about the United States’ AUMF with respect to the Islamic State, that had its origins on Lawfare and Just Security earlier in the week, specifically about use of force provisions against “associated forces” and why the government should go with Just Security’s “parties to the conflict” interpretation versus Lawfare’s proposal of “engaged in hostilities”.

From our regular contributors, we saw Peter’s analysis of Kuwait’s decision to bulk-order Comoros citizenship (to the tune of a couple hundred million dollars) for stateless native-born tribal Bidoon, thereby purporting to solve the statelessness problem in Kuwait and Roger discussed his contribution to a Notre Dame Law Review symposium on Bond v. United States, in which he presented on the relationship between Supreme Court treaty interpretation and the international approach to treaty interpretation under the Vienna Convention on the Law of Treaties.

Kristin called attention to the election of two new ICJ judges and Kevin also announced a UNWCC event at SOAS London coming up on the 19th.

Finally, I wrapped up the news and An listed events and announcements.

Many thanks to our guest contributors and have a nice weekend!

http://opiniojuris.org/2014/11/15/weekend-roundup-november-8-15-2014/
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Weekly News Wrap: Monday, November 10, 2014

by Jessica Dorsey

Your weekly selection of international law and international relations headlines from around the world:

Africa

  • A suicide bomber dressed as a student killed at least 48 people, most of them students, and injured 79 others at a school assembly in the northeastern Nigerian town of Potiskum on Monday, a hospital official said.
  • Opposition parties, civil society groups and religious leaders adopted a plan on Sunday for a transitional authority to guide Burkina Faso to elections, after a popular uprising forced longtime president Blaise Compaore from power.

Middle East and Northern Africa

Asia

Europe

Americas

Oceania

UN/World

http://opiniojuris.org/2014/11/10/weekly-news-wrap-monday-november-10-2014/
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Weekend Roundup: November 1-7, 2014

by An Hertogen

This week on Opinio Juris, Peter continued his commentary on the Zivotofsky hearing and Kristen posted the transcript of the recent hearing in the Haiti Cholera case.

Jens wrote about the DOD’s plans for a Defense Clandestine Service, and welcomed the news that President Obama will seek congressional authorization for the ISIS campaign.

Kevin discussed the passage in the OTP’s Mavi Marmara decision where the OTP finds that Israel is still occupying Gaza, and explained why the Comoros’ appeal will have little effect in practice.

In guests posts, Nikolaos Ioannidis wrote on the complex legal issues surrounding activities in the Cyprus EEZ, and Giacomo Pailli analysed the Italian Constitutional Court’s decision that the ICJ decision in Germany v Italy can be given no effect in the Italian legal system.

Finally, Jessica wrapped up the news and listed events and announcements, and Kevin asked our European readers for advice on PhD applications.

Many thanks to our guest contributors and have a nice weekend!

http://opiniojuris.org/2014/11/08/weekend-roundup-november-1-7-2014/
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Weekly News Wrap: Monday, November 3, 2014

by Jessica Dorsey

Your weekly selection of international law and international relations headlines from around the world:

Africa

Middle East and Northern Africa

Asia

Europe

Americas

Oceania

UN/World

http://opiniojuris.org/2014/11/03/weekly-news-wrap-monday-november-3-2014/
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Weekend Roundup: October 18-31, 2014

by An Hertogen

This fortnight on Opinio Juris, Jens predicted that the Ebola crisis will become a Chapter VII issue at the UN. The theme of the UN and diseases continued in Kristen’s update on a hearing on the UN’s Privileges and Immunities in the Haiti Cholera case. In other UN news, she summarized some of the issues discussed at a meeting on the Security Council’s methods.

Kevin wrote on the Constitutional Court of South Africa’s decision in the Zimbabwe Torture Docket case, finding that international law did not prohibit universal-jurisdiction investigations in absentia.  Kevin also assessed the likelihood of the ICC’s OTP opening an investigation into Chevron’s activities in Ecuador. For those in need of a refresher on these activities, Peter recommended Paul Barrett’s Law of the Jungle.

Peter looked ahead at the Supreme Court argument in Zivotofsky v. Kerry, and pointed out three factors that in his view point to the Court sustaining the Jerusalem Passport Statute, while Julian wondered what China really means when it celebrates the “International Rule of Law”.

Kevin congratulated Dapo Akande on his promotion to Professor of International Law at Oxford, and recommended a post by Mark Kersten on the terror attacks in Canada.

We ran two guest posts: one by Chimène Keitner on the evolving law of foreign official immunity, and one by William Dodge who raised a question on the Convention on the International Sale of Goods.

Finally, Jessica wrapped up the international law headlines (1, 2), and we listed events and announcements (1, 2). Our readers may also be interested in a Lawfare podcast on al-Bahlul, featuring Kevin, Wells Bennet and Steve Vladeck.

Have a nice weekend!

http://opiniojuris.org/2014/11/01/weekend-roundup-october-18-31-2014/
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Weekly News Wrap: Monday, October 27, 2014

by Jessica Dorsey

Your weekly selection of international law and international relations headlines from around the world:

Africa

Middle East and Northern Africa

Asia

Europe

Americas

Oceania

  • A group of asylum seekers in Australia who took the immigration department to court over the exposure of their personal details in a major data breach have won a federal court appeal, and the immigration minister has been ordered to pay their costs.

UN/World

http://opiniojuris.org/2014/10/27/weekly-news-wrap-monday-october-27-2014/
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